The complexity of science vs law vs PR: Implications for anti-doping and Oscar Pistorius

I've finally emerged from the "bubbles" that were the trip up Kilimanjaro, which was followed almost immediately by a trip to the USA where I spent a week with the SA Sevens team for the IRB Series tournament in Las Vegas. It was another harsh reminder that the best preparation and hardest work can sometimes fail because on the day, things don't work and other teams are better...competitive sports is a ruthless world!

In any event, those tournament weeks are always something of a "bubble", inside which I miss many interesting sports stories. The jet lag and 9 hour time difference don't help, but the bubble has finally burst and I thought I'd share one or two links, and some short insights on stories that have broken since late January.

Cycling and doping: Three big stories

To begin with, three big stories in the world of cycling and doping. In no particular time order, Jan Ullrich, Tour de France champion and many time runner-up was sanctioned by the Court of Arbitration for Sport, and all his results since 2005 annulled. He of course retired years ago, so the two year ban is more symbolic than practical, but it ends one of cycling's more high-profile chapters. Ullrich, for his part, responded on his website, apologizing for his dealings with Fuentes, but not entirely accepting the court's opinion. You can read his full statement here.

This decision was preceded by perhaps an even more significant one - the US Attorney Andre Birotte Jr announced that the federal investigation into Lance Armstrong would be ending. The announcement was strategically timed to garner as little media coverage (in the USA) as possible, coming the Friday before the Superbowl. There has however been some reaction to it, mostly dealing with the timing of the decision (the investigation had been a 2-year long struggle up to this point), and perhaps more importantly, the legal vs ethical issues surrounding doping.

Those who have kept up with the case will be well aware that doping in sport is not a federal crime. As a result, the investigation was not about whether Armstrong doped or not, it was built predominantly around fraud, conspiracy and other charges related to the violation of Armstrong's team's contract with the U.S. Postal Service. Those who are proclaiming "innocence" are thus choosing to stop short of the point, at least as far as doping goes.

The result of this is that the federal investigation may have been dropped because of a simple balance between "cost" (time and financial) and "reward". There has been no explanation for why the investigation has been dropped, and nor is there likely to be, leaving most to speculate and wonder what the reasons are. One of the outcomes is that the ball is now firmly in the court of the anti-doping authorities, such as USADA, who can continue to pursue the case of doping against Armstrong.

There were reports, since confirmed, that USADA had been in contact with the investigators to gain access to the evidence they had collected as part of the criminal case. Travis Tygart, the CEO of USADA, issued this statement following the US Attorney General's annoucement:

"Unlike the U.S. Attorney, USADA's job is to protect clean sport rather than enforce specific criminal laws. Our investigation into doping in the sport of cycling is continuing and we look forward to obtaining the information developed during the federal investigation."

Time will tell whether that evidence is forthcoming, and how it is acted upon, but certainly, the announcement that the investigation was ending is not the same thing as drawing a line under the issue.

Then third, and most relevant to cycling today (since he is the only active cyclist of the three), was the decision, finally, of CAS on the Alberto Contador case. The end result of over two years of deliberations and court proceedings, protestations, accusations and cow slandering? Four thousand pages of argument and counter-argument, a 98-page verdict, and a two year ban for Contador, which is really only 6 months, because it has been backdated to when the case began.

There are far better summaries of this case than I can provide in a short time. For perhaps the best, read Matt Rendell's excellent analysis here. He tackles issues of strict liability, the Contador defence (veal solomillo and clenbuterol, at 32 Euros a kilogram, apparently), and the UCI/WADA argument, which was built around the likelihood that the clenbuterol came from the infusion of plasma as part of Contador's alleged blood doping during that Tour de France.

This defence is particularly intriguing to me, because it has evidence supporting it, and therefore can be "proved" (in so far as "proof" seems to exist in these cases). That evidence was described by Prof Michael Ashenden, one of the leading biological passport scientists. He reported to CAS that Contador's reticulocyte percentages during the race were abnormally high, which would be indicative of EPO use, because that switches on red blood cell formation (for more on the biological passport, reticulocytes and how all this works, read this article that I wrote last year). Contador's hemoglobin levels were also abnormal, compared to his biological passport history, leading the UCI, WADA and Ashenden to suggest that they were consistent with blood doping.

Ultimately, the CAS tribunal ruled that a blood transfusion was "very unlikely to have occurred", though I'm not sure why they came to this strong decision. It was perhaps related to the biological passport's own internal requirements for a "strike", which I explained previously. It was Ashenden's testimony, the legal back-and-forth it caused, its ultimate dismissal and then the CAS judges refusal to allow Ashenden to have a final session of questioning that was leaked to the press after the hearing, so unhappy were the WADA/UCI lawyers.

The legal battle - how law undermines the openness of science

All of which brings me to my main opinion/insight on these matters. The fact of the matter is, as anti-doping becomes more sophisticated, it becomes more and fraught with the burden of scientific "proof". The reality is that science is open, it asks questions and only answers some of them! It is rarely black or white, and the problem with this is that legal teams, armed with scientific experts of their own, can always, without fail, cast doubt on scientific findings.

To me, the findings of abnormal reticulocytes and hemoglobin concentration points very strongly to a likelihood of transfusion. It doesn't prove it - the biological passport cannot prove anything in that way, and it has been designed like this to protect cyclists against false positive tests. However, it points there, and so when a tribunal, dealing with the same evidence I'm seeing, concludes that a transfusion is "very unlikely to have occurred", I'm left mystified at their thought-processes. At worst, they can conclude that a "transfusion is possible, but cannot be upheld given the physiological complexity of blood parameters". But to dismiss it as "very unlikely"...?

A declaration like that ("very unlikely to have occurred") is definitive, it is black and white. Science is grey, and so the two, science and law, seem to be very uneasy bedfellows.

Science being picked off, one by one, by the law

I have long held this opinion. It began as a healthy skepticism of lawyers, and it was the Oscar Pistorius-CAS decision that pretty much condemned me to have zero confidence in the manner in which the law evaluates scientific evidence. That decision was, to be blunt, a complete joke, and the CAS was manipulated by Hugh Herr and the rest of the Pistorius team, because they were able to exploit scientific "uncertainty" to win a legal verdict.

Then yesterday I read this absolutely brilliant piece by Lionel Birnie, in which he explains how the law attacks science and undermines it exactly because it is open. As I was reading it, I found myself thinking "This piece could just as well have been written for the Pistorius case". Science's greatest strength is its weakest point in anti-doping cases (and in cases like those of Pistorius). Here is a section of Birnie's piece, which I highly recommend:

It seems that a lot of people love to put their faith in the law and yet are sceptical about science. The law is man-made (and therefore flawless) whereas what we know about science keeps changing (and therefore cannot be trusted). This applies to sport just as it does to many areas of life.

Science is attacked for its greatest strength – the fact that it cannot prove or disprove everything. Science is exploratory. It is open-minded and willing to accept that there may be another possibility, however slim the idea may seem. Science is never so arrogant as to presume it knows everything.

When dealing with anti-doping cases, the law is exploitative in the sense that it seeks out areas where science is on shaky ground. It looks for loopholes and unpicks them ruthlessly. You could argue that science sees the dots and tries to work out how they are connected, while the law picks them off one by one.

We have seen in many anti-doping cases how the defence lawyers work through the argument line by line, clause by clause, trying to prove or disprove. And that is why we end up with such division among sports fans who are struggling to work out who the good guys are and who are the baddies.

So many jewels in that piece alone - "Science is open-minded and willing to accept that there may be another possibility", and "science cannot prove or disprove EVERYTHING". Case in point - dehydration and performance. There are scientists who maintain that any dehydration will compromise your performance. There are others who argue that we can lose 2 to 8% of our fluid with no negative effects, and they cannot reconcile those two opinions, as simple a question as this may appear. Science is full of areas of contention, and doping is perhaps one of the most complex. The case of Pistorius is equally complex - the evidence certainly pointed to an advantage, but clever scientists, backed by even smarter lawyers, are able to "pick them off one by one".

Direction dependent - the verdict depends on who gets the final scientific "disproving" say

Therefore, what we had with Pistorius was a case of science trying to "join the dots" and create a picture that he had an advantage, while others picked off those points to cast doubt on this finding. The key is to realize that this could have happened in either direction. That is, it could have been designed in a way that said that Pistorius was clear to compete unless the IAAF could show that an advantage existed. Then, the IAAF would have had the initiative and would have been able to cast doubt on evidence suggesting there was no advantage. As it was, the question was asked in the other direction - the starting point was that Pistorius had an advantage, and this could be disproved (legally) by picking off the evidence.

Therefore, the decision you arrive at depends entirely on the direction from which you approach it, at least in terms of how the science is evaluated. In anti-doping, this start point is determined by the concept of "strict liability" - the athlete has to show that the positive test was not the result of doping. For Pistorius, the burden was with the IAAF to prove that the advantage existed, and so Pistorius' team were able to deflect every scientific finding with enough doubt to get the verdict, despite the scientific evidence (which didn't meet CAS' legal standard, clearly, though there were other factors in play here too)

Enter public relations

Lionel Birnie's great insight didn't end there, however. He also recognized that it is a third party, Public Relations, that ultimately wields the biggest stick in cases like these. He writes:

The court of public opinion is where the phoney war is fought. Over the past 18 months, while science and the law have been carefully preparing their arguments for serious scrutiny, the public are teased along as if they’re watching a Punch and Judy show.

PR is flashy. It comes up with catchy phrases that capture the public imagination and it wins hearts and closes off minds. It is hardly surprising that most people will be turned off by the idea of wading through pages of legal and scientific argument. It is difficult, it strays well outside our areas of understanding and it makes our brains hurt.

Once again, this is so accurate for the Contador case, it's accurate for Armstrong, it's accurate for Pistorius (thanks Nike and about a dozen other sponsors). Last year, Prof Peter Weyand, one of the researchers who did join the dots to see the advantage Pistorius had, wrote to me after I published his explanation of his research, and expressed frustration at how the general public do not want to wade through the complexities of the scientific argument.

He is 100% correct. I share this frustration, and when I read drivel like the recent Outside magazine or New York Times pieces on Pistorius, it's tremendously frustrating because one half of the scientific team (Herr) are making idiotic claims that have no basis in evidence or reality, while the other half (Weyand) are being circumspect and scientifically cautious. Public relations looks at this with glee, because it's so easy to back the extreme view, however false or inaccurate it may be. That fuels the fire, and the public are watching, to borrow Birnie's phrase, "a Punch and Judy show".

The general public, and therefore the general media who cater to them, do not want to peel back layer after layer of scientific explanation to truly understand a case. They want simple answers, black and white, and science is incapable of providing them. PR, on the other hand, thrives on simple answers. Backed by legal complexities, it's not difficult to see why so many people are confused, and therefore choose to hear one message over another without necessarily understanding it.

The fight against doping - the danger of crippling complexity

So, for doping, there is a real problem. Anti-doping is becoming so complex that it may end up crippling itself in the court of law. The more dots there are to join (the role of science), the more points there are to attack (the role of law). The end result is that the cost of prosecution will sky-rocket, it will become increasingly difficult to enforce test results, and the public, ultimately the "paying" customer, will be turned off by the complexity. Enter the PR firms.

There is an anti-doping future, then, which exists on the internet and is waged by PR firms and athletes, who build mountains for anti-doping authorities to climb. All of this is a call to action, though it beats me what the solution might be.

The end result for Contador is that he'll be able to race in the Vuelta this year. We still don't know if he did anything wrong - having dismissed the Contador argument of contaminated beef, having dismissed the UCI/WADA argument of a blood transfusion, the CAS tribunal ends up concluding that a "contaminated supplement" is more likely the source, and therefore grounds for a ban (read part 2 of Rendell's excellent analysis for more on this).

Contador's results have been annulled, and so Andy Schleck is your Tour de France champion from 2010 (a hollow victory). It could have been worse, of course - I was actually surprised that CAS did reach the decision it did, I fully expected Contador to be cleared, and so perhaps there is some hope left. Whether such a long, and expensive process, changes the anti-doping game in the future remains to be seen. Your thoughts welcome, and I realize that there is so much to the verdict and the argument that I haven't covered, but I highly recommend Rendell's pieces, both Part 1 and Part 2 on the judgment.

The "upside down" VO2max protocol

The other interesting story, one that has garnered some great discussion on our Twitter account, is the recent study that found that VO2max is increased when you do a reverse protocol that starts out at a high power output and decreases (as opposed to the normal progressive increase to fatigue). The implication of this finding is that the VO2 "max" concept is incorrect, which is something many already knew, but it calls into question the idea that oxygen delivery or use is limiting during maximal exercise. After all, if VO2max can be increased and then maintained simply by doing something different, despite maximal effort, then how was it the limitation in the first place? The implication of your answer to this question is rather important!

The study is therefore a hook for the idea that something else regulates performance, though it doesn't establish precisely what that is. There is the suggestion that the brain is in control, and that's so obvious many people will dismiss it as "too easy". But there are many reasons to suggest this, and I'll cover these in a blog post as soon as I can. The bottom line, regarding this study at least, is that it's fairly obvious, and not as outrageous as it may seem. But the reaction of people who see it tells the story of sports science and the VO2max theory, which has long been full of holes, but remains entrenched among many as the explanation for maximal performance. This is akin to proclaiming that the world is flat. Someone has to point out that it is round, and as obvious as this may be (the idea that the brain is command is equally obvious), this study adds to that realization.

Perhaps even more important are the implications of this. People make the incorrect leap that it's about "mind over matter". The idea that the brain controls exercise is not the same as saying that our mental capacities determine performance. This is obvious. It's not "mind" over matter, but "brain" over matter - it's still physiology, so let's not get too carried away with the idea that we can "believe" ourselves into being elite athletes. Certainly, psychology is crucial, and belief is essential, but the physiological limits still exist, and the regulation of performance is still physiological! Can we do more with the right mental approach? Of course, but that's a parallel area of performance management.

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